HH: We move to a half hour’s conversation about the Constitution. It’s sort of a new edition of the Smart Guys, not with Erwin today. Instead, Professor Geoffrey Stone of the University of Chicago rejoins us to complete, or actually continue to expand on a conversation I started with him last week. Also holding up his end of the bargain, Professor John Eastman of Chapman University Law School. Let’s set this up this way. Professor Stone, welcome back, good to have you, John, always a pleasure. I always feel better moderating as opposed to debating my guests, and so John, would you start by telling us what the Supreme Court did recently in the Gonzales versus Carhart case?

JE: On Wednesday, April 18th, the Supreme Court by a 5-4 vote, with Justice Kennedy writing the majority opinion, upheld the Congressional partial birth abortion ban act of 2003. This was a statute that banned a particularly gruesome form of abortion, almost always late term, in which the baby is partially delivered through the birth canal, but then before the delivery is completed, the scissors are inserted into the base of the skull, the skull is crushed, and then the cranial contents are evacuated out from the baby, so that the baby is delivered dead. Congress thought that that was particularly troubling, because it was so close to infanticide, and that it would have a huge impact on just devaluing our notion of respect for human life. And the Supreme Court upheld that ban, like I said, by 5-4. Justice Kennedy, Justices Thomas and Scalia, had been in dissent when five years ago, the Supreme Court struck down a similar ban out of the state of Nebraska. And since then, Chief Justice Roberts has replaced Chief Justice Rehnquist, and voted consistently with where Chief Justice Rehnquist had voted in the Nebraska case. And then Justice Alito, Sam Alito, replaced Justice O’Connor, and he voted with now the new majority, now represented by Justice Kennedy writing the majority opinion.

HH: Now Dean Stone, you were critical of this decision. Can you summarize your criticism, and in particular, your concerns about the majority?

GS: Sure. My criticism, first of all, starts from the premise that regardless of the right result on this issue, that the Court resolved it in a 5-4 decision seven years ago, and that in my view, there was no principled basis for distinguishing this case from the one that the Court decided seven years earlier, and that the opinion of Justice Kennedy offers no persuasive justification at all for why this case is actually different. And that’s problematic, because the justices are not supposed to have constant do-overs. They’re actually supposed to follow the law. And the fact that Justices Scalia and Kennedy and Thomas dissented last time doesn’t mean they should be taking the same position in this case. They’re supposed to regard the law as the law. And it’s particularly troubling with Justices Roberts and Alito, who in their confirmation hearings, made quite a fuss over the fact that they’re respectful of precedent, and then turned around in this case and, in my view, simply ignored the controlling precedent. So to me, the interesting question in the case to begin with is that here, you have a settled precedent, seven years old, the Court turns around in a very unusual step, in my view, and simply, flatly ignores the prior decision, and imposes a different result without addressing the question of whether the prior case should be overruled, or whether there was any justification for overruling.

HH: Go ahead.

GS: And so that left me with the question of why would these justices behave in a way that in my view is so unprofessional? And then I noticed that all five justices in the majority share a particular religious faith that has a particular view on the question of abortion, and that seemed to me then appropriate to raise the question whether they were acting in this way, which I do think is unprofessional, because they were giving too much weight to their own religious viewpoints in interpreting secular law. And to the extent that that might be the case, it’s an important question to consider.

HH: In the Law School Faculty blog that became instantly controversial across the blogosphere, John Eastman, Professor Stone wrote, “Well, what then explains this decision. Here is a painfully awkward observation. All five justices in the majority in Gonzales are Catholic. The four justices who are either Protestant or Jewish all voted in accord with settled precedent. It is mortifying to have to point this out, but it is all too obvious and too telling to ignore. And ultimately, the five justices in the majority all fell back on a common argument to justify their position. There is, they say, a compelling moral reason for the result in Gonzales, because the intact D&E seems to resemble infanticide, it is immoral, and may be prohibited even without a clear statutory exception to protect the health of the woman.” How do you react to that analysis, John Eastman?

JE: You know, Geoff Stone was a professor of mine at the University of Chicago, he’s a terrific professor. But I am taken aback by that description. Let me read to you a provision from Justice Kennedy’s opinion, where he’s recounting the description of this procedure, given by a nurse who used to be part of it. “The baby’s little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck the scissors in the back of his head, and the baby’s arms jerked out like a startled reaction, like a flinch, like a baby does when he thinks he’s going to fall. The doctor opened up the scissors, stuck a high powered suction tube into the opening, and sucked the baby’s brains out. Now the baby went completely limp.” To say that that is simply driven by religious views of the five Catholics on the Court, rather than a moral abhorrence that ought to be shared by every single human being in the universe is beyond me. It’s perplexing. The second thing I want to take up is, I encourage your readers, Hugh, to look at the opinion itself. Justice Kennedy does a workmanlike job going through the prior precedent in Carhart Vs. Stenberg, and distinguishing that case, and I think quite appropriately. Justice O’Connor, in that decision, had invited states and the federal government to provide restrictions on this abortion procedure that were more narrowly focused, that were not as vague, so that they couldn’t be used more broadly to allow for restrictions on abortions in the first term, for example. That’s exactly what Congress did with this statute, at Justice O’Connor’s own invitation. And to say that they’re somehow ignoring precedent, when they’ve done what the Court invited them to do, to try and provide a Constitutional restriction on this particular procedure, I think quite frankly is dishonest. And what it means is that somebody that would make that claim is reaching out to try and find ground to discredit this opinion because they don’t like the outcome. And that’s not what we’re supposed to be doing as law professors, and certainly not what lower court judges ought to be doing when they look to this decision to try and understand what it did.

HH: Professor Stone?

GS: Well, I mean, one thing I would do is simply invoke our colleague at Harvard, Charles Fried, who disagrees with me on most things, and so far as I know, does not believe Roe V. Wade was right, and yet he wrote an editorial in the New York Times, in which he essentially made a mea culpa for having endorsed Roberts and Alito on the grounds that he felt that joining this opinion was completely intellectually dishonest, and a complete abandonment of the principle of stare decisis. And I think that’s right. I mean, obviously, as good lawyers, we can always make arguments that X is different from Y. The question is whether X is different than Y in a principled manner. And in this case, there was no principled basis for the distinction.

HH: John Eastman?

JE: No, again, I’ll go back to Justice O’Connor’s invitation. Now she may have been dishonest when she wrote this invitation in Carhart Vs. Stenberg seven years ago, but the problem with that Nebraska statute was that it was argued to be ambiguous enough that it might apply to procedures other than the particular partial birth abortion procedure that they were trying to limit. Congress tightened up the language in response to just that thing. And for the Court to then say well this is the same case, no matter how tightened up you get, it was to call, essentially, Justice O’Connor a liar back in Carhart. It’s to say that what Carhart really meant to say is nowhere, no how, are we ever going to allow abortions to be restricted, no matter how close they are to infanticide. That’s not what the Court did in Carhart. It may be what some would have liked it to do, but that’s not what it said. And I think this is a very faithful application of that invitation by Justice O’Connor in Carhart. Now that aside, and by the way, Justices Roberts and Alito sign onto that very narrow aspect of the opinion. They do not join on with Justices Scalia and Thomas in their dissent, which is much broader. It said we ought to revisit the entire line of cases since Roe V. Wade, because they are all illegitimate. There is no Constitutional grounding for any of those cases. And for the Court to make it up in 1973, which everybody concedes they’ve done, and then to say that that now becomes somehow sacrosanct, and can never be questioned, can never be addressed, is to do, I think, what Lincoln accused the Court in Dred Scott of doing, which is to say if we are every to hand over the decisions on such fundamental policy judgments at these, to that imminent tribunal, we will cease to be a democracy, resolving some fairly fundamental controversies in our land. The most important part of what Justice Kennedy did here, that most people aren’t talking about, is he gave a greater degree of deference to the legislature than has normally been the case in abortion cases, to try and let the political process back into the discussion for how we try and resolve this issue.

HH: Professor Stone.

GS: Well, John’s real objection, it seems to me, is that he doesn’t like Roe V. Wade, and I understand that he doesn’t like Roe V. Wade, and that’s a completely fair position to take. But the question is how does a responsible justice deal with the fact that it’s been the law for more than thirty years, and that it’s been reaffirmed repeatedly, and you can whine about that all you want. But the fact is the justices in this case acted in a totally uncraftsmanlike and unprofessional matter.

HH: Professor Stone, I’ve got to ask you one question.

GS: With respect to the other…

HH: Was Lochner, was it right to reverse Lochner, one of the most famous reverse courses ever?

GS: Yes, and the Court did it up front.

HH: And so there’s no moral…that’s not a moral wrong. It’s when the Court…

GS: No, precedent is not a doctrine that can never be overturned. But one needs to have an intellectually honest discussion of the issue. And if they wanted to overrule the earlier case, I think they could have done that. But what they did here, in my opinion, obviously John and I disagree, was something that was completely intellectually dishonest.

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HH: Dean Stone, in your piece that launched the controversy, it seemed to me that you were saying there is no way to reach this conclusion, other than to have been Catholic and to have relied on your Catholic faith. Now that…

GS: No, no, no. That’s not at all what I was saying.

HH: All right.

GS: What I was saying is if you want to understand why these five justices in particular reached this result, you might want to ask what is it that may have driven in a way that in my judgment was completely uncraftsmanlike and unprofessional. And the fact that all five of them are Catholic is an interesting fact. And I understand that judges are often affected by their values, by their outlook, by their experiences. And in this instance, I think that what probably explains the fact that they’ve behaved in the way they did in this case is that they have a particular take on the issue of abortion, which does drive from their religious views.

HH: And do you have any evidence that their Catholic faith, in fact, motivated the opinion?

GS: No more so than one would have if a school district puts up the Ten Commandments, and the courts say that you know, we don’t think there’s any reason for them doing this, other than the fact that they’re acting out of religious belief, that in fact, they are…it’s hard to figure out a way to explain why five justices in particular would reach this result, when all five of them happen to be Catholic, and all four of the others don’t happen to be Catholic, and reach a different result. It may be, of course, I want to be clear, it may be that their religion had absolutely nothing to do with this. But the fact is it’s a serious question, and worth asking.

HH: Now John Eastman, I said to Professor Stone last week that I thought that line of analysis is bigoted, and leads us into places we ought not to go. He rejects that and has written about that. What do you make of that line of analysis?

JE: Well, I can’t disagree with it more, and I think it’s getting perilously close to trying to impose a religious test on holding office, if the office is as judge. But I want to go back to this other issue about this being an uncraftsmanlike opinion. I’ve been reading Justice Kennedy opinions for a long time. And I know Geoff Stone has as well. And quite frankly, this is one of the more craftsmanlike opinions that has ever come out from his pen. And let me just go through some of the detail on how he distinguishes. One of the issues in the Nebraska case seven years ago was the statutory language said that if you deliver a substantial portion of the fetus outside of the uterus and into the birth canal, and then conduct this procedure, you can be criminally prosecuted. The Court there said that a substantial portion was vague. It would leave doctors uncertain as to what constituted a substantial portion, and what did not. Congress responded to that part of the Court’s opinion in the Carhart Vs. Stenberg, the Nebraska case seven years ago, and instead of using language like substantial portion, it says with specific. If the feet are pulled out in a breech delivery, up to above the naval, if the head is pulled out so that the head itself is fully exited from the birth canal. It gave specific lines of demarcation, so there was no longer any vagueness about it at all. And Justice Kennedy, very workmanlike, says that that answers fully the vagueness objection that we had back in the Nebraska case. It’s a very deliberate, very carefully written opinion, and quite frankly, none of the kind of rhetorical flourishes that are customary from Justice Kennedy’s opinion. It is the most workmanlike opinion that he’s ever authored from the Court. So I’m astounded that Dean Stone thinks it’s an unworkmanlike opinion, other than to think that he doesn’t like the outcome, he doesn’t like any whittling away whatsoever with the kind of mantra that all restrictions on abortion must fall, because they’re an infringement on the right that the Court found in 1973.

HH: Professor Stone?

GS: Well, it seems to me the key fact that John is missing here is the absence in the statute an exception for the health of the mother. Never before has the Court upheld a restriction on abortion procedures without recognizing that those procedures are appropriate when necessary to the health of the mother. That’s the key factor in this case in which the justices divided. And it’s the key fact that which the legislation should have been invalidated.

JE: And I agree…

GS: All the justices seem to agree that the prohibition of this process would be permissible in a late stage with the exception for the health of the mother. This statute did not include that. And that was the basis, I think, for why this statute was unconstitutional.

JE: And Justice Kennedy again, in a very workmanlike manner, deals with that issue as well. The Nebraska case did not say that you always have to have an exception for the health of the mother. What it said was unless there’s a pretty uniform medical consensus that the health of the mother is never at risk. And we’re not talking about banning a particular procedure altogether. We’re talking about, and this is the Congressional finding, beginning this procedure, and then stopping midway through the delivery to make sure that the child that has born is actually born dead, rather than possibly born alive. And what the medical consensus on that precise question was, there is never a health of the mother need for stopping midway to make sure that the baby is born dead. And in fact, it’s unhealthy for the mother to have to go through that extra step. Now this is where there is one change from the prior case law, and Justice Kennedy said whether there’s uniformity of opinion on that, or whether there’s a disagreement among the medical community, we are going to give a little bit more deference to the legislative process in helping resolve that disagreement, whereas in prior abortion cases, though not in the run of the mill cases across the board, they were never giving that deference to the legislature, never inviting the legislative process, or the political process into the debate. And if Justice Kennedy’s opinion has moved the ball at all, it’s by inviting that political legislative discussion into the debate. And quite frankly, that’s the discussion we should have been having since 1973.

HH: Professor Stone?

GS: Well, whether you think that’s the appropriate approach, that is to give deference to legislative judgments, depends on a matter about which John and I obviously disagree, and that’s whether there is in fact a Constitutional interest at stake in this context. We give deference to legislative judgments in Constitutional law when we don’t think that there is a fundamental or important interest at stake on the other side. What the Court held in Roe V. Wade is of course that the interest of the woman in this context is a fundamental Constitutional interest, and therefore that the legislature has to demonstrate in a compelling fashion, not just in a way that would be reasonable, that there is a sufficient justification for limiting the exercise of the right. That’s not a small change. That’s a huge change, and it’s a change that completely departs from preceding decisions.

HH: Professor Stone, at your post, you wrote that among Congress’ clearly erroneous findings, where its assertions that no medical schools provide instruction on intact D&E, that intact D&E is never necessary to safeguard the health of the woman, and that intact D&E is less safe than alternative procedures, each of these findings was and is false. In fact, in many schools, including Chicago, Northwestern, Yale, Columbia, teach D&E. There is a clear medical consensus that in particular circumstances, intact D&E is necessary to protect the health of the woman, and there is clear medical consensus that in particular circumstances, intact D&E is safer than the alternative procedures. You did not footnote any of those, especially, and I have been receiving…

GS: Well obviously, on a blog, you don’t normally footnote. But the fact is, all of the lower courts made those findings.

HH: Would you find, or provide at least the citation on the Chicago, Northwestern, Yale and Columbia medical schools teaching D&E? Because I’ve been receiving e-mail that that’s just flatly wrong.

GS: Well actually, even in the opinion, Justice Kennedy concedes that’s the case, so…

HH: But is that what your citation is to him, then, as opposed to a different court or…

GS: I’m citing on the fact that both the majority and the dissent in that context, and lower courts, all accepted that.

HH: John Eastman, in that instance, if he’s correct, and I haven’t investigated that, is it in fact right for deference to a clearly erroneous statement of fact? Because that would seem to me to be a clearly erroneous statement of fact on the part of the Congress.

JE: Well, look, there’s a shell game going on here, and the shell game was in part launched by Judge Reinhardt on the 9th Circuit in one of the two cases that was up before the Supreme Court.

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HH: John Eastman, the Congress made a finding that medical schools don’t teach this partial birth abortion procedure. Professor Stone said that’s clearly erroneous. Is it? What’s going on here.

JE: Well, let me go to the prior question, which I think feeds into this, and that is whether this procedure is ever necessary for the health of the mother. Congress said no, and what they were talking about specifically when they reached that finding, is there is never any medical necessity for stopping…the intact D&E is dilation and extraction, where they dilate the woman and then they extract the baby intact, rather than cutting it apart in pieces in the uterus, and then pulling out the pieces. And what Congress made was a specific finding that having begun the intact D&E procedure, there is never any medical necessity for stopping…for the woman, for stopping the procedure midway through the birth canal, and to make sure that the baby that is being delivered is born dead rather than delivered alive, that that is simply a function of interest in having a dead fetus rather than an alive fetus be born, that there’s no medical necessity there. Justice Reinhardt re-characterized the question, or Judge Reinhardt, in his decision in the 9th Circuit, which is one of the two cases decided by the Supreme Court. And he compared the medical evidence that sometimes the intact D&E procedure itself, which is delivering the baby intact, rather than dismembered in the uterus, is healthier for the mother, because there’s no risk of perforations in the uterus, or bone fragments causing damage on the way out. And that’s true. And so all of this is engendered around a confusion of what exactly we’re talking about, and what the precise Congressional finding was. Now then you get to the question do any medical schools ever teach not the intact D&E delivery as a method for abortion, but the stopping midway in order to make sure that the skull is crushed, so that the baby is born dead rather than alive. That may be the entirety of the disagreement on whether these schools teach this particular part of the procedure or not.

HH: In which case, Professor Stone, it would hardly be significant, or at least deserve the significance you’ve attached to it, would it?

GS: The way John characterizes it, I would say that’s probably correct. It wouldn’t make a whole lot of difference. However, it’s not the way the lower courts characterized it, and my own looking at the briefs and records of the case suggest that that’s an overly subtle characterization of what in fact the difference is.

HH: Okay, we’ve got like three minutes left, so I want to sum up now. Professor Stone, the Catholic nature of the justices, do you really think that that is what drove this opinion?

GS: I think it’s a reasonable question to ask. Again, I don’t think that justices operate in the abstract. I think that they have experiences and values and backgrounds. Justice Marshall was an African-American justice. Justice Thomas is African-American. There are Jewish justices, there are Catholic justices. They bring their experiences. Northern and Southern justices, they bring their experiences to bear. I do think that those experiences affect them. I also think the judges have a particular responsibility to be careful about allowing some experiences and values to influence their judgments. And one of those in particular, in my view, is their religious beliefs, because I do think a society that is committed to separation of Church and state, that for judges in fact not to be cautious about that is extraordinarily dangerous. And as I note in the blog, I was a law clerk to Justice Brennan, who was at the time the only Catholic justice. And I watched him struggle with this issue in Roe V. Wade itself, because I was a law clerk that year. And it was very conscious on his part that he knows, he knew he had a certain set of values that he thought was inappropriate to impose on the nation, and he worked to think through the Constitutional issue, independent of those religious views, and I think that’s the appropriate way for judges to behave, and I’m not clear that’s the way these justices behaved in this case.

HH: John Eastman?

JE: Yeah, I just don’t think you can read the description of this procedure that was provided by Justice Kennedy here, but it was also provided by the majority opinion in the Nebraska case, to large extent, the same gruesome discussion, and think that moral abhorrence to that procedure, and the concern about how close it is to infanticide, and how devaluing of human life it is, I don’t think you can subscribe to that view, that it’s simply Catholic doctrine coming out in their opinions. There’s no hint of that in the opinion at all. This is a morally abhorrent procedure, it’s well within Congress’ authority to restrict it. That’s what Justice Kennedy says. And to go back to Roe V. Wade, it’s important to remember that what the Court actually said in there is it recognized a right to an abortion, but it also recognized the state’s fundamental interest in protecting unborn human life.

HH: Professor Geoffrey Stone of the University of Chicago Law School, Professor John Eastman of Chapman University Law School, thank for the extended discussion that needed to be had. And I hope to have you both back at some time.